The default
In Community of Property
Marry without an ANC and everything becomes one joint estate.
The joint estate
If the spouses do not execute an antenuptial contract, they are automatically married in community of property. All their assets and liabilities — those owned before and acquired during the marriage — merge into a single joint estate owned by both in undivided, equal half-shares (a tied co-ownership). On dissolution the joint estate is divided equally.
Debts and insolvency
The spouses are jointly liable for the debts of the joint estate. A serious downside: if the joint estate is sequestrated, both spouses are insolvent. Under s 17(4) of the Matrimonial Property Act, a sequestration application must be made against both spouses. Once sequestrated, the joint estate vests in the Master and then the Trustee — the innocent spouse cannot protect their share of the joint assets. Both spouses acquire insolvent status and suffer the associated legal incapacities (e.g., disqualification from company directorships under the Companies Act 71 of 2008). Legal advice: clients in high-risk commercial occupations should consider marrying out of community to protect the household assets.
Excluded assets
A few assets stay outside the joint estate — e.g. assets a testator/donor stipulated must be excluded, and non-patrimonial (general) damages for a delict against one spouse (e.g. for pain and suffering).
Key Rule
No ANC → married in community of property: one joint estate, owned in equal undivided half-shares, divided equally on dissolution. Both spouses share the debts.
Common Mistake
Thinking community of property means each spouse owns specific things. They co-own the whole estate in undivided half-shares — neither owns any particular asset alone.
Administration
The Consent Requirements
Equal power to administer — but the biggest acts need the other spouse's consent.
Equal administration
Under the Matrimonial Property Act 88 of 1984 both spouses have equal capacity to administer the joint estate. Either may act alone for ordinary transactions, but the Act (s 15) requires the other spouse's consent for the most important dealings.
Acts needing consent
- Alienating or mortgaging immovable property of the joint estate
- Entering credit agreements, or binding oneself as surety
- Alienating or pledging investments, shares, or valuable assets held as investments
- Withdrawing money the other spouse deposited, or receiving certain payments
Protecting third parties
To protect innocent outsiders, s 15(9)(a) provides that where a spouse enters a transaction with a third party who does not know (subjective) and cannot reasonably know (objective) that consent was required and absent, the transaction is deemed valid. Critically, a third party who knew that the seller was married in community has a duty of inquiry — failure to ask whether consent exists means they are deemed to have "reasonably known" it was required (Visser v Hull 2010
(1) SA 521 (WCC)). If the third party is not protected, the innocent spouse may set aside the transaction immediately (not merely on dissolution). Where the third party is protected, the innocent spouse's remedy under s 15(9)(b) is an adjustment on dissolution of the estate, provided the other spouse knew the consent was absent and the estate suffered a loss.
Key Rule
Both spouses administer equally, but s 15 consent is needed for big acts (immovable property, credit, suretyship). s 15(9)(a) shields a bona fide third party (both subjective and objective ignorance required). Knowing the spouse is married in community creates a duty to inquire (Visser v Hull).
Common Mistake
Assuming every sale without consent is automatically void. A bona fide third party (genuinely unaware, with no reason to inquire) is protected — the transaction is deemed valid. Only when the third party knew or should have known is the transaction voidable.
The ANC
Out of Community by ANC
Contract out of community before the wedding, notarially and registered.
The antenuptial contract
Spouses who wish to marry out of community of property must execute an antenuptial contract (ANC) before the marriage. To bind third parties it must be notarially executed and registered in a deeds registry (Deeds Registries Act 47 of 1937). Out of community means separate estates: each spouse keeps their own assets and liabilities, and there is no joint estate.
Two flavours
- Out of community with the accrual system — the default for every ANC concluded on or after 1 November 1984, unless the accrual is expressly excluded
- Out of community without accrual — complete separation of property; the ANC must expressly exclude accrual to achieve this
Changing the system later
Spouses may change their matrimonial property system during the marriage only by application to the High Court under s 21 of the Matrimonial Property Act — showing sound reasons, notice to creditors, and that no one is prejudiced.
Key Rule
Out of community requires a notarial, registered ANC before the marriage → separate estates. Post-1 Nov 1984 an ANC includes accrual unless expressly excluded. Change later only by s 21 court order.
Common Mistake
Thinking an ANC can be signed after the wedding. It must be executed before the marriage; afterwards, the only route to a different system is a s 21 High Court application.
The accrual
The Accrual System
Separate estates during the marriage — but share the growth at the end.
The idea
The accrual system (Chapter I of the Matrimonial Property Act 88 of 1984) combines separation during the marriage with sharing of growth at the end. During the marriage each estate is separate; on dissolution (by death or divorce) the spouse whose estate showed the smaller accrual has a claim for half the difference between the two accruals.
How accrual is calculated
The accrual of an estate = its net value at the end of the marriage minus its commencement value adjusted for CPI (Consumer Price Index). Important: the commencement value must be CPI-adjusted — never subtract the raw/nominal commencement value, as this would inflate the apparent accrual. Commencement values are recorded in the ANC or a statement; an estate with no proven commencement value is taken to have started at nil. Formula: Accrual = Net end value − (Commencement value × CPI adjustment). Claim = ½ × (larger accrual − smaller accrual).
What is excluded from accrual
- Inheritances, legacies and donations received during the marriage (and, generally, their proceeds) — unless the spouses agree otherwise
- Assets expressly excluded in the antenuptial contract, and any asset that replaces them
- Non-patrimonial damages (e.g. for pain and suffering)
- Donations between the spouses
The claim
The accrual claim arises only at dissolution — it is not a co-ownership during the marriage. It is a personal (money) claim for half the difference in accruals, and it is transmissible to and against deceased estates.
Key Rule
Accrual claim = ½ × (larger accrual − smaller accrual), payable to the spouse with the smaller accrual at dissolution. Exclude inheritances, donations, non-patrimonial damages and ANC-excluded assets.
Common Mistake
Treating accrual as co-ownership during the marriage. Estates stay separate throughout; the accrual claim only crystallises when the marriage ends.